Citation NR: 9737521
Decision Date: 11/07/97 Archive Date: 11/12/97
DOCKET NO. 96-26 464 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for back and mental
disorders under the provisions of 38 U.S.C.A. § 1151 (West
1991).
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from May 1965 to May 1968.
This appeal arose from a February 1996 rating decision of the
Jackson, Mississippi, Department of Veterans Affairs (VA),
Regional Office (RO), which denied the appellant’s claim. In
June 1997, the appellant testified at a personal hearing in
Jackson, Mississippi before a member of the Board designated
to conduct that hearing.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that service connection
should be granted for back and mental disabilities, which he
asserted developed after he was in a motor vehicle accident.
He stated that the accident was the result of a blackout
which he suffered after being given the wrong medication by
VA. Therefore, he believes that service connection for back
and mental disorders is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for back and mental disorders under the
provisions of 38 U.S.C.A. § 1151 is well grounded.
FINDING OF FACT
The veteran has not been shown by competent medical evidence
to suffer from additional disability the result of injury
suffered as a result of VA treatment.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well grounded
claim for service connection for back and mental disorders
under the provisions of 38 U.S.C.A. § 1151. 38 U.S.C.A.
§§ 1151, 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, one which is plausible. If he has not
presented a well grounded claim, his appeal must fail and
there is no duty to assist him further in the development of
his claim because such additional development would be
futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). As will be explained below,
it is found that his claim is not well grounded.
38 U.S.C.A. § 1151 (West 1991) provides that a veteran who
has been injured as the result of VA medical or surgical
treatment, and not as a result of the veteran’s own willful
misconduct, shall be awarded compensation if that injury
results in additional disability, in the same manner as if
such disability were service-connected.
The Board notes that in Brown v. Gardner, 11 S.Ct. 552
(1994), the U.S. Supreme Court held that 38 C.F.R.
§ 3.358(c)(3) was not consistent with the plain language of
38 U.S.C.A. § 1151 (West 1991) with respect to the presence
of fault or accident requirement. However, the validity of
the remainder of the implementing regulation has not been
questioned. See Gardner, 115 S.Ct. 552, 556 n.3 (1994).
The remaining relevant sections of 38 C.F.R. § 3.358 (1994),
provide that in determining whether additional disability
exists following medical or surgical treatment, the physical
condition for which the beneficiary sought treatment will be
compared with the physical condition resulting from the
disease or injury on which the claim for benefits is based.
See 38 C.F.R. § (b)(1),(b)(1)(i), (ii) (1994). The
regulation further provides that compensation is not payable
for the continuance or natural progress of the disease or
injury for which surgical treatment was authorized.
38 C.F.R. § 3.358(b)(2) (1994). Furthermore, in determining
whether such additional disability resulted from disease or
injury or an aggravation of an existing disease or injury
suffered as a result of (in this case) surgical treatment,
the following consideration will govern: It will be
necessary to show that the additional disability is actually
the result of such disease or injury or an aggravation of an
existing disease or injury and not merely coincidental
therewith. 38 C.F.R. § 3.358(c)(1) (1994).
In March 1995, the Department of Veterans Affairs issued an
interim final rule amending 38 C.F.R. § 3.358 (1994). In
pertinent part, 38 C.F.R. § 3.358(c)(3) was revised to read
as follows:
Compensation is not payable for the necessary
consequences of medical or surgical treatment or
examination properly administered with the express
or implied consent of the veteran, or, in
appropriate cases, the veteran’s representative.
“Necessary consequences” are those which are
certain to result from, or were intended to result
from, the examination or medical or surgical
treatment administered. Consequences otherwise
certain or intended to result from a treatment will
not be considered uncertain or unintended solely
because it had not been determined at the time
consent was given whether that treatment would in
fact be administered.
60 Fed.Reg. 14.222 (1995) (to be codified at 38 C.F.R.
§ 3.3580.
Pursuant to 38 U.S.C.A. § 1151 (West 1991), the appellant is
entitled to compensation for additional disability he
currently suffers which is found to result from other than a
certain or close to certain result of the treatment or
necessary consequence of the treatment.
In the instant case, the veteran has alleged that he suffers
from back and mental disorders which he asserted developed
after a motor vehicle which he was allegedly involved in
after suffering a blackout which he said was caused by taking
incorrect medication given to him by VA. A VA outpatient
treatment record from December 1, 1995 does show that he had
been given Axid instead of Nifedipine, and that he had not
been feeling well since. However, the veteran has presented
no objective evidence of the existence of either a back or a
mental disorder. Moreover, he presented no evidence that he
was even involved in a motor vehicle accident as the result
of a blackout caused by ingesting the Axid.
The United Stated Court of Veterans Appeals has stated that,
in order for a claim for service connection to be well
grounded, there must be competent medical evidence of the
existence or diagnosis of a current disorder. Rabideau v.
Derwinski, 2 Vet. App. 141 (1992). In order to establish
entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 (West 1991), the veteran must present
evidence that he suffers from a currently diagnosed
additional disability that can be attributed to the treatment
provided by VA. He has failed to submit any evidence of such
an additional disability. Nor is he competent, as a
layperson, to state that such additional disability exists,
since he cannot provide an opinion as to medical diagnosis or
causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Therefore, it is found that he had failed to submit competent
evidence that his claim for additional disability under the
provisions of 38 U.S.C.A. § 1151 is well grounded.
The appellant has not informed VA of the existence of any
specific evidence germane to any claim at issue that would
complete an incomplete application for compensation, i.e.,
well ground an otherwise not well grounded claim, if
submitted. Consequently, no duty arises in this case to
inform that appellant that his application is incomplete or
of actions necessary to complete it. See 38 U.S.C.A.
§ 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet.App. 459 ,
465 (1996); Johnson v. Brown, 8 Vet.App. 423, 427 (1995); cf.
Robinette v. Brown, 8 Vet.App. 69 (1995) (when a claim is not
well grounded and claimant inform VA of the existence of
certain evidence that could well ground the claim, VA has
duty under 38 U.S.C.A. § 5103(a) to inform claimant that
application for compensation is incomplete and to submit the
pertinent evidence).
It is also found that there is no prejudice to the veteran in
denying this claim as not well grounded, even though the RO
decision was on the merits. Edenfield v. Brown, 8 Vet.App.
384 (1995).
ORDER
Entitlement to compensation for additional disability under
the provisions of 38 U.S.C.A. § 1151 is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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